October 1, 2012

Today's SCOTUS order list: Dorsey and Miller GVRs, along with a Rubashkin cert denied

As I had expected (and predicted here) after the Supreme Court last week announced it had granted review in six new cases lacking significant sentencing issues, the Justices have now made official that they do not think the (in)famous Rubashkin case merits the Court's energy or attention on direct review. In this new SCOTUS order list, the Rubashkin case appears deep within the usual first Monday mega-list of cases for which certiorari has been denied. (I filed an amicus brief in support of cert together with the Washington Legal Foundation explaining why I though Rubashkin's sentencing and sentence justified cert review.)

The new SCOTUS order list ought also be of some interest to sentencing fans based on a couple of GVRs based on last Term's Eighth Amendment decision in Miller and a larger number of GVRs based on last Term's Fair Sentencing Act interpretation decision in Dorsey. I am not sure if any of these GVRs are especially noteworthy or unexpected as a matter of procedure, though the posture and process of the sentencings in the Miller GVRs (one of which is from Texas and the other from Wyoming), and/or any potentially similar cases in which a GVR was not granted, might perhaps provide basis for speculating about how SCOTUS is likely to deal with all the Miller aftermath issues which are already keeping many lower courts busy.

Back on the Rubashkin front, it will be interesting to see if the many prominent persons who were vocal in their complaints about the prosecution and sentencing of Rubashkin will to turn significant attention and energies toward a 2255 petition (or a clemency application) now that the Supreme Court has decided to take a pass. (The nature and process surrounding a 2255 petition in the Rubashkin case could be especially interesting given that a 2255 petition is typically to be filed with and considered by the district judge who originally presided over the case and that a principal claim by the Rubashkin defense if that the district judge in Iowa who presided over the trial and imposed a harsh sentence should have been recused because of her involvement with the prosecutors concerning pre-indictment matters.)

The GVR in Bear Cloud v. Wyoming is especially significant because it involves a non-mandatory LWOP sentence imposed on a juvenile homicide offender. (The Wyoming Supreme Court's merits decision is State v. Bear Cloud, 2012 WY 16, 275 P.3d 377 (Wyo. 2012).) Although Bear Cloud is not binding precedent, it's a big help to the argument that Miller applies to non-mandatory LWOP sentences when the trial court did not consider youth as a mitigating factor (an argument that I am trying to convince the Ohio Supreme Court to accept in another case).

Posted by: Stephen Hardwick | Oct 2, 2012 9:50:53 AM

My last post is wrong. I apologize for the mistake. On closer reading (which I should have done before posting), "life in prison with the possibility of parole" in Wyoming means "life in prison with the possibility of parole" only if the governor first commutes the sentence. Accordingly, even though the trial court can choose between "LWOP" and "LWP," both possible sentences are LWOP as defined in Graham and Miller. So the sentence really was "mandatory" LWOP.

But this GVR does support another argument made by some defendants. The decision challenges the State's argument that Graham and Miller apply only to sentences labeled "life without parole." So it doesn't matter if a state changes the label from "life without parole" to "life with the possibility of parole," but then says parole can come only after commutation. Likewise, it doesn't matter if a State labels a sentence "80 years" if, in substance, the child has no meaningful opportunity for release.

Posted by: Stephen Hardwick | Oct 2, 2012 10:23:16 AM

Kudos to Mr. Hardwick for something rarely seen on this blog (or anywhere else, for tht matter): Spontaneous self-correction.

Posted by: Bill Otis | Oct 2, 2012 10:37:34 AM

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